R. v. Pearce (M.L.),

• Jurisdiction: Manitoba
• Judge: Greenberg, J.
• Neutral Citation: 2011 MBQB 63
• Citation: (2011), 263 Man.R.(2d) 133 (QB),2011 MBQB 63,[2011] MJ No 96 (QL),263 Man R (2d) 133,(2011), 263 ManR(2d) 133 (QB),263 ManR(2d) 133,[2011] M.J. No 96 (QL),263 Man.R.(2d) 133
• Date: 11 March 2011
• Court: Court of Queen's Bench of Manitoba (Canada)

R. v. Pearce (M.L.) (2011), 263 Man.R.(2d) 133 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. AP.001

Her Majesty The Queen v. Michael Lynn Pearce (accused)

(CR 08-01-28498; 2011 MBQB 63)

Indexed As: R. v. Pearce (M.L.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Greenberg, J.

March 11, 2011.

Summary:

Pearce was charged with manslaughter on July 15, 2007. His trial was scheduled to be completed by October 14, 2011. Alleging that the 51 month delay breached his right under s. 11(b) of the Charter to be tried within a reasonable time, he sought a stay of proceedings.

The Manitoba Court of Queen's Bench dismissed the application.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - Pearce was charged with manslaughter on July 15, 2007 - His trial was scheduled to be completed by October 14, 2011 - Alleging that the 51 month delay breached his right under s. 11(b) of the Charter to be tried within a reasonable time, he sought a stay of proceedings - The Manitoba Court of Queen's Bench, in dismissing the application, agreed with Pearce that he had not waived his right under s. 11(b) by accepting preliminary hearing dates in December 2008 - Those were the first dates offered by the Crown - However, the situation was different regarding trial dates - October 2010 dates had been offered in July 2009 - It took until November 2009 for defence counsel to confirm that she was not available in October 2010 - The Crown then offered dates in March or April 2011 - By refusing the dates first offered and asking for new dates to accommodate defence counsel, particularly in view of the length of time it took for defence counsel to ask for new dates, Pearce was taken to have waived any delay between October 2010 and March 2011 - See paragraphs 18 to 23.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - Pearce was charged with manslaughter on July 15, 2007 - His trial was scheduled to be completed by October 14, 2011 - Alleging that the 51 month delay breached his right under s. 11(b) of the Charter to be tried within a reasonable time, he sought a stay of proceedings - The Manitoba Court of Queen's Bench dismissed the application - The majority of the delay was attributable to the inherent time requirements of the case, reasonable institutional delay or the actions or acquiescence of the defence - See paragraphs 24 to 48 - One year of delay was attributable to the Crown, which was excessive - Most of the prejudice alleged by Pearce was a result of being charged with murder as opposed to the delay in the proceedings - However, the restrictions on his liberty and the stress under which he lived had been exacerbated by the delay - The excessive delay and the prejudice to Pearce had to be balanced against the public interest in ensuring that criminal charges were dealt with on their merits - The more serious the offence, the more important it was for the accused to be brought to trial - Pearce was originally charged with murder - While the charge had been reduced to manslaughter, the offence was a vicious beating - The significance of the seriousness of the charge in determining whether a stay of proceedings should be granted should not be understated - While Pearce had suffered some prejudice, in view of the serious nature of the charge, the balance weighed in favour of allowing the matter to proceed to trial - See paragraphs 55 to 64.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See Civil Rights - Topic 3265 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - Pearce was charged with manslaughter on July 15, 2007 - His trial was scheduled to be completed by October 14, 2011 - Alleging that the 51 month delay breached his right under s. 11(b) of the Charter to be tried within a reasonable time, he sought a stay of proceedings - Pearce alleged that the delay caused him prejudice in a number of ways - He spent nine months in jail before being released on bail - He spent another eight months under a strict curfew until that bail condition was varied - He lost his job - As part of the bail plan, he had to move to Saskatchewan so that he could live under his parents' supervision - Regarding the impact of the delay on his right to a fair trial, Pearce submitted that the passage of time had affected his memory - The Manitoba Court of Queen's Bench, in dismissing Pearce's application, held that Pearce had not shown prejudice to his right to a fair trial - He had been prejudiced to some extent by the restrictions on his liberty - Further, one could infer some prejudice by the overall length of the delay itself - See paragraphs 49 to 54.

Cases Noticed:

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 14].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 15].

R. v. Godin (M.) (2009), 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. [para. 15].

R. v. N.N.M. (2006), 209 O.A.C. 331 (C.A.), refd to. [para. 27].

R. v. MacDougall (P.A.), [1998] 3 S.C.R. 45; 231 N.R. 147; 168 Nfld. & P.E.I.R. 83; 517 A.P.R. 8, refd to. [para. 32].

R. v. Tovey, 2006 ONCJ 492, refd to. [para. 20].

R. v. S.T.N. (2006), 204 Man.R.(2d) 212; 2006 MBQB 148, refd to. [para. 39].

R. v. George (D.P.) (2006), 208 Man.R.(2d) 300; 383 W.A.C. 300; 2006 MBCA 150, refd to. [para. 50].

R. v. Kporwodu (A.) et al. (2005), 196 O.A.C. 272; 75 O.R.(3d) 190 (C.A.), dist. [para. 57].

Counsel:

Deborah L. Carlson, Melinda D. Murray and Renée D. Lagimodière, for the Crown;

Katherine L. Bueti, for the accused.

This application was heard by Greenberg, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on March 11, 2011.